Delhi District Court
State vs . Saleem S/O Sh. Sattar, R/O Gali No.7, ... on 19 November, 2010
1
IN THE COURT OF MS. SUNITA GUPTA : DISTRICT JUDGEVIICUM
ADDITIONAL SESSIONS JUDGE : NORTHEAST DISTRICT :
KARKARDOOMA COURTS : DELHI :
S.C. No. 106/09
Unique Case ID No. 02402R0125482008
State Vs. Saleem S/o Sh. Sattar, R/o Gali No.7, Nehru Vihar, Delhi94.
FIR No. 06/08
PS Khajuri Khas
U/s 363/376/344/506 IPC.
Date of Institution : 23.12.08
Date of reserving the Judgement : 08.11.2010
Date of Pronouncement : 19.11.2010
J U D G E M E N T : Prosecution case emanates from the fact that on 04.01.08, Sabina (name changed) along with her father Rafique came to police station and lodged report with police, wherein she detailed that her brotherinlaw (Jeeja), namely, Saleem took her to Khajuri Chowk on the pretext of purchasing Chhole Bhture. She went along with him. At about 1pm, Saleem took her to some unknown place, where he committed rape upon her person. He used to threaten her of dire consequences, in case she would divulge facts to anyone. He also took her to some other place, where they stayed for five or seven days. Thereafter, he took her to Badayun, U.P., where he used to keep her in an isolated room. He committed rape upon her several times without her consent. When she used to talk to him about her release, he used to threaten her of her life and dire consequences. She gave birth to a baby, namely, Kashish, as a result of rape committed upon her by the accused. She narrated entire incident before her father Rafique. Her statement became bedrock of the case. Investigation was taken up. During the course of investigation, accused was arrested in the case. Investigation culminated into a charge sheet against him. S.C. No. 106/09 Page 1/21
2
2. Charge for offences punishable under sections 363, 344, 376 and 506 IPC was framed against the accused, to which charge he pleaded not guilty and claimed trial.
3. To substantiate the charge, prosecution has examined Ms. Sabina (PW1), Rafique (PW2), Ruby Sharma, Constable (PW3), ASI Khem Bahadur (PW4), Constable Mubaraka (PW5), HC Umesh Kumar (PW6), SI Kashmira Singh (PW7), Dr. Kiran Guleria (PW8), Dr. Parmeshwar Ram (PW9), Dr. Bhawna Aggarwal (PW10) and Retd. SI Rajeshwar Singh (PW11) in the case.
4. Ms. Sabina (PW1) is victim in the case.
Rafique (PW2) is the father of prosecutrix Sabina, before whom the latter narrated entire incident.
Constable Ruby Sharma (PW3) took Sabina to GTB Hospital for her medical examination.
ASI Khem Bahadur (PW4) recorded formal FIR and proved copy of the same as Ex.PW4/B. Constable Mubaraka (PW5) took prosecutrix Sabina to GTB Hospital for her bone age determination.
HC Umesh Kumar (PW6) took accused to GTB Hospital and got him medically examined.
SI Kashmira Singh (PW7) was assigned investigation of the case on 05.01.08. On 08.01.08, she got conducted bone xray of prosecutrix. Thereafter, the challan was prepared.
Dr. Kiran Guleria (PW8) proved MLC of Sabina as Ex.PW8/A, which was prepared by DR. Gunjan Singh.
Dr. Parmeshwar Ram (PW9) examined accused and prepared his MLC Ex.PW9/A. Dr. Bhawna Aggarwal (PW10) gave confirmation to facts unfolded by Dr. Kiran Guleria.
S.C. No. 106/09 Page 2/21
3 Retd. ASI Rajeshwar Singh (PW11) is the investigating officer of the case and has deposed that he was posted at PS Khajuri Khas on 04.01.2008. On that day, one girl, namely, Sabina along with her father, namely, Rafique, came at the PS. He recorded statement of Sabina, which is Ex.PW1/A. He made endorsement on the same, which is Ex.PW11/A and produced tehrir before the duty officer for registration of the case. He along with Rafique and Constable Umesh went to the house of accused at Sri Ram Colony. They overpowered accused and accused was interrogated. He prepared arrest memo and personal search memo Ex.PW6/B and Ex.PW6/C respectively of the accused. He directed Umesh Kumar, Constable to get the accused medically examined. He also got prosecutrix Sabina medically examined through Ruby Constable. He took into possession two sealed parcels, one sealed test tube with the seal of MLC GTB Hospital, vide memo Ex.PW6/B. Case property was deposited in malkhana. Accused was put behind the lockup of PS Bhajanpura and prosecutrix was given in the custody of her father. He recorded statement of witnesses. After completing the investigation, he filed challan in the case.
5. In order to afford an opportunity to explain circumstances appearing in evidence against the accused, he was examined under section 313 Cr.P.C. Except the fact that Ms. Sabina was his sisterinlaw (Saali), he denied all allegations levelled against him. His case has been of denial simplicitor. He claimed himself innocent. He pleaded his false implication in the case. However, to defend himself he has examined four witnesses, namely, Mohd. Aman Ullah (DW1), Shahabuddin (DW2), Shakeel (DW3) and Aas Mohd. (DW4) in support of his case.
6. I have heard Sh. Ravinder Khandelwal, ld. Public Prosecutor, for the State and perused the written submissions filed on behalf of accused and have perused the record.
S.C. No. 106/09 Page 3/21
4
7. It was submitted by ld. Counsel for the accused that entire testimony of prosecutrix reveals that she was a consenting party in going with the accused. Under these circumstances, no offence is made out against him and he is entitled to be acquitted.
8. Per contra, it was submitted by ld. Prosecutor that it has been established on record that prosecutrix was a minor, when she was taken by the accused and she has categorically deposed that she was confined by the accused and sexual act was committed without her consent. As such testimony ofprosecutrix herself is sufficient to convict the accused, which does not require any corroboration, and prosecution has been able to establish its case beyond reasonable doubt and accused is liable to be convicted of the offence alleged against him.
9. As regard statement of ld. Prosecutor that testimony of prosecutrix herself is sufficient to convict the accused, same has force, inasmuch as, there are catena of decisions to this effect that testimony of prosecutrix herself is sufficient and does not require any corroboration.
10. Hon'ble Apex Court in State of Maharashtra Vs. Chandraprakash Kewal Chand Jain AIR 1990 SC 658 laid down that a woman, who is the victim of sexual assault, is not an accomplice to the crime but is a victim of another person's lust and, therefore, her evidence need not be tested with the same amount of suspicion as that of an accomplice. The court observed as under: " A prosecutrix of a sexoffence cannot be put on par with an accomplice. She is in fact a victim of the crime. The Evidence Act nowhere says that her evidence cannot be accepted unless it is corroborated in material particulars. She is undoubtedly a competent witness under section 118 of the Evidence Act and her evidence must receive the same weight as is attached to an injured in cases of physical violence. The same degree of care and caution must be attached in S.C. No. 106/09 Page 4/21 5 evaluation of her evidence as in the case of an injured complainant or a witness and no more. What is necessary is that the Court must be alive to and conscious of the fact that it is dealing with the evidence of a person who is interested in the outcome of the charge levelled by her. If the Court keeps this in mind and feels satisfied that it can act on the evidence of the prosecutrix, there is no rule of law or practice incorporated in the Evidence Act, which requires it to look for corroboration. If for some reason the Court is hesitant to place implicit reliance on the testimony of the prosecutrix it may look for corroboration required in the case of an accomplice. The nature of evidence required in to lend assurance to the testimony of the prosecutrix must necessarily depend on the facts and circumstances of each case. But if a prosecutrix is an adult and of full understanding, the Court is entitled to base a conviction on her evidence unless the same is shown to be infirm and not trustworthy. If the totality of the circumstances appearing on record of the case disclose that the prosecutrix does not have a strong motive to falsely involve the person charged, the Court should ordinarily have no hesitation in accepting her evidence."
11. Similar view is taken in State of Punjab Vs. Gurmeet Singh 1996 (2) SCC 384 and Omprakash Vs. State of U.P. (2006) 9 SCC 787.
12. From the judicial decisions rendered by Hon'ble Apex Court the law as regards the credibility of the testimony of prosecutrix may be summarized thus:
(1) There is no rule of law that corroboration is essential before there can be a conviction solely on the testimony of the prosecutrix. But as a matter of prudence, the necessity of corroboration must be present to the mind of the Judge.
(2) There may be circumstances in a given case which might make it safe to dispense with such a corroboration. S.C. No. 106/09 Page 5/21
6 (3) On the other hand, there may be factors in a case tending to show that the testimony of the prosecutrix suffers from infirmities in a manner so as to make it either unsafe or impossible to base a finding of guilt to the same. Some of the salient factors of this type may briefly be stated thus:
(a) circumstances showing on the part of prosecutrix an animus against the accused;
(b) where the question of want of consent is material, circumstances tending to show consent: e.g., absence of material showing an attempt at resistance; absence of any marks of struggle;
(c) attempt in improvement or exaggeration in the version as attempted by the prosecutrix;
(d) conduct on the part of the prosecutrix, inconsistency with the credibility of the version e.g., omission to make a disclosure at the earliest opportunity.
(e) element of artificiality or unnaturalness in the story as attempted by the prosecutrix, and
(f) absence of signs of rape in the findings of the medical examination or on chemical analysis.
13. This being the legal proposition, let us turn to the case in hand. Section 361 IPC enacts the provision that whoever takes or induces any minor under 16 years of age, if a male or under 18 years of age, if a female, or any person of unsound mind to go out of keeping of lawful guardian of such minor or person of unsound mind, without consent of such guardian, is said to have kidnapped such minor or person from lawful guardianship. Therefore, to attract provisions of section 361 IPC, following ingredients should be established:
1. There must be taking or inducement of a minor or a person of unsound mind.
S.C. No. 106/09 Page 6/21
7
2. The minor must be under 16 years of age, if a male or under 18 years of age, if a female.
3. Taking or inducement must be out of keeping of lawful guardianship of minor or person of unsound mind.
4. Taking or inducement must be without consent of guardian of minor or person of unsound mind.
14. The word "entice" involves an idea of inducement by exciting hope or desire in the other. One does not entice another, unless the latter attempted to do a thing, which he or she would not otherwise do. The expression enticing involves that, while the person kidnapped might have left keeping of lawful guardian willingly, still the state of mind that brought about that willingness must have been induced or brought about in some way by the accused.
15. To constitute "taking" of a minor out of lawful guardianship of his/her parents would not suggest that it should be done by force. The work "take" means to cause to go, to escort, or to take into possession. For taking to be complete, it should be shown that the accused was instrumental in either counselling her to leave or helping her in leaving. The prosecution has to prove that accused had played some active part in taking the girl from keeping of her lawful guardian's house and taking shelter in his house. The word "take" implies want of wish and absence of desire of the person taken. In order to constitute taking, it is necessary to make out that active part in going away was that of accused and not that of the girl. Factum, which would be and should be taken into consideration in deciding whether there has been taking in particular case, are conduct of the parties, particularly of the accused at the time and before their going away together, the maturity of the girl and her intellectual capacity to think for herself and to make up her mind and circumstances under which and the object for which she felt it necessary or worthwhile to leave her S.C. No. 106/09 Page 7/21 8 guardian's protection.
16. The word "keeping" is a word of wide importance and would cover a case, where a minor is merely in protection or care of guardian or depends upon him for his or her maintenance, support or sustenance whenever necessity arises. The tie cannot, therefore, be dissolved suddenly on the guardian being struck with some infirmity or disease. A classic example of this situation is available in the precedent of Bishweshwar Mishra (AIR 1949 Orissa 22) wherein prosecutrix was a married girl below 16 years of age, who was living with her husband. There was a quarrel between them on certain date and resultant of that quarrel, the girl left her husband's house on the morning of next date. She boarded a bus that morning with the idea of taking temporary shelter with her maternal uncle. On the way, she was taken by the accused to his house. During her stay, accused attempted to seduce her by making immoral overtures. However, she did not care. Her evidence was that when she left her husband's house, she left temporarily on account of anger and she did not intend to leave it for good. It was held that despite the fact that she voluntarily came out of her husband's house, she continued the fact that she voluntarily came out of her husband's house, she continued to be in keeping of her husband all along and that keeping has not been abandoned by her.
17. In order to prove kidnapping, prosecution is required to prove that accused had taken or enticed prosecutrix out of keeping of her lawful guardian. The object behind Section 361 of Indian Penal Code, which defines kidnapping, is to protect minor children from being seduced for improper purposes and to protect the rights and privileges of guardians having lawful charge or custody of their minor wards. What is necessary is either taking or enticement of the minor. Taking would include causing to go or getting into possession whereas enticement involves an idea of inducement, by igniting hopes or desire in the other. One does not entice S.C. No. 106/09 Page 8/21 9 other unless the latter attempted to do a thing which he or she would not otherwise have done. In order to bring home conviction for kidnapping, there must be proof of the accused having done something which led to the girl going out of the keeping of her guardian. The words "takes" and "entices" as used in Section 361 of Indian Penal Code need to be read together so as to take colour and content from each other.
18. In the instant case, material witness is PW1 Sabina, the prosecutrix, who has unfolded that accused is her brotherinlaw (jeeja). Her sister Fatima got married to accused. She came to depose in the Court on 08.04.09. According to her, about one and half years ago, accused asked her to accompany him to Khajuri Khas red light to eat Chhole Bhature. On this, she accompanied him to Khajuri Khas red light. At about 1pm she was taken to some unknown place, at that place mother, unmarried sister and one brother of accused were present there. She asked Saleem as to where he had brought her, on which she was given beatings by him. She asked him to leave her at her parental house and Saleem asked her to live over there. In the night, Saleem committed intercourse with her against her will and consent. He also threatened to kill her, if she happens to divulge these facts before anyone. In night, she made complaint to the mother of Saleem regarding sexual intercourse, on which she told her that accused is her son and he can do so. On the next day, maternal uncle and maternal aunt of Saleem came there and she even asked them to leave her at her parental house. But instead of dropping her at her parental house, accused Saleem took her to Badayun, U.P., where Asma, sister of Saleem, resides. She inquired from Saleem as to why she had brought her at his sister's house instead of dropping her at her parental house, on which Saleem told her that she has to stay with him there itself. She was kept in that house for a period of one and half year against her wishes. During this period, she used to ask him to take her to her parental house, S.C. No. 106/09 Page 9/21 10 but he never took her there. During this entire period, accused committed sexual intercourse with her many a times against her consent and will. Rahat, brotherinlaw of Aslma, also used to reside there and she also made complaint to him, on which he told her that they had called her at that place for that purpose only and in future she would be sent to somewhere else for sexual exploitation. Due to forcible sexual intercourse by Saleem against her consent and will, she became pregnant. She used to be beaten by Saleem, Rahat, Asma and mother of Saleem, whenever she used to make complaint. After eight or nine months, she gave birth to one female child, namely, Kashish. Accused brought her and her daughter back to her parental house. At that time, her daughter was 1011 months old. She stated all these facts before her parents and thereafter she went along with them to police station, Khajuri Khas, where her statement Ex.PW1/A was recorded by police officials. She was also taken to hospital, where she was medically examined. In crossexamination, she has deposed that accused Saleem is husband of her sister Fatima and out of their wedlock two male child were taken. After marriage of Saleem with Fatima, they remained at Mustafabad, along with his mother. Accused Saleem used to visit her house occasionally. She also used to go to the house of accused, but she had never gone there alone and she used to go with her family members. Accused had taken her alone to Khajuri Khas, at about 1pm, on foot. However, they did not eat chhole bhature over there as accused told her that they would eat chhole bhature somewhere else. She thereupon asked the accused to take her back to her house, but he insisted for going further. From there, accused took her to some unknown place in the house, where mother, brother and sister of accused were present. She could not say, if she was taken to the house of one Shakeel, who resides near Kalyan Cinema in Brahampuri. She also denied that she performed nikahanama with Saleem or that Shakeel was a witness on that S.C. No. 106/09 Page 10/21 11 nikahanama. She also denied her signatures on the said nikahanama. She denied the suggestion that her nikah was performed at Mehrauli, Delhi, and nikah was performed with her own will as she was in love with accused Saleem. It has further come in her crossexamination that when accused brought her to the house of his mother, at that time she asked mother of accused as to why she has been brought over there. His mother told her that whatever Saleem want to do, he can do so. She was taken by accused at unknown place in a white colour car. There were two rooms in that unknown place/premises. According to her, she could not inform neighbours that she was brought over there by accused as she was not allowed to go outside that premises. She was kept at that unknown place for about three or six days and thereafter she was taken to the residence of Asma, married sister of accused, in Badayun, U.P. According to her, she had stated before Asma and her husband that accused had brought her there on which they stated that she should not worry and remain there along with the accused. She was kept at the house of Asma at Badayun, U.P., for about one and half years. She admits that there were houses situated near house of Asma at Badayun and the persons used to reside in the vicinity. House of Asma was three storeyed. According to her, she was kept in a room and was hardly allowed to go at the roof. She used to remain confined in the room itself by the accused. She admitted that she was brought back to her parental house at Delhi by accused. Her parents were aware regarding residence of family members of relatives of accused Saleem. They also knew address of Asma at Badayun. She could not say, if her parents were aware that she was with accused Saleem there, therefore, they did not try to trace her. During the period of one and half years, when she was kept by the accused Saleem, at that time her sister Fatima was residing separately at Mustafabad. When accused brought her from Badayun to Delhi, during night time, Saleem left her in street and S.C. No. 106/09 Page 11/21 12 she went to her house. He came later on, after five minutes. Her family members inquired from her regarding her whereabouts and she stated all the facts to them. She along with her parents went to police station, at that time accused was at her house. They did not inform accused that they were going to make complaint against him at police station, when they left the house. She further deposed that she was taken to Badayun by accused in a car. His maternal uncle, namely, Hidat, Mami, Reshma (eldest sister of accused) also accompanied them. They were aware of the fact that she was being taken by the accused. According to her, she even made complaint to them that she was being taken forcibly. She admitted that when she asked accused to take her back to her parental house, then accused brought her to Delhi. She denied the suggestion that her parents and sister Fatima were aware that she has been taken by the accused Saleem or that due to this reason her parents did not trace her and did not lodge any report regarding her missing.
19. Prosecutrix has deposed that she was induced and taken by the accused on the pretext of eating chhole bhature at Khajuri Khas Chowk red light. However, instead of taking her to that place, accused took her to one unknown place, where mother, sister and brother of accused were present and she was kept there for two days, where accused committed sexual intercourse with her. Thereafter, accused took her to Badayun, UP, at the house of his sister and kept her there for a periiod of one and half year, and continued to have physical relations with her. Thereupon, prosecutrix gave birth to a female child.
20. Testimony of prosecutrix that she was forcibly taken by the accused from one place to another, and thereafter accused committed sexual intercourse with her forcibly does not inspire confidence, keeping in view the fact that a period of nineteen months had elapsed since the date when prosecutrix went missing and when she returned back to her house. S.C. No. 106/09 Page 12/21
13 According to her, initially when she was taken at unknown place, mother, sister and brother of accused were present and she was kept there for two days. Thereafter, in a maruti car, she was taken to Badayun, UP, and at that time maternal uncle and aunt of accused also accompanied them. Thereafter, she was kept at the house of Asma, sister of accused. It was admitted by her that house of Asma was surrounded by many other houses. It seems highly improbable that during this entire period, prosecutrix would have been confined by accused or at no point of time she could make any complaint to anyone or tried to run away from there. As per her own version, when she asked accused to take her to her parents house, accused himself accompanied her and took her to the house of his parents. It is the case of accused that he had gone to the house of prosecutrix along with her and child in order to invite family members of prosecutrix for celebrating birth day of the minor child. Although this plea has been denied by the witness, but the fact remains that it was at her instance that accused had brought her at her parental house. This conduct of the accused in accompanying her to her parents house belies the version of prosecutrix that she was forcibly taken, confined and then subjected to sexual intercourse by the accused. It was quite unnatural that knowing fully well that accused had committed wrong act with prosecutrix, he would go to the house of parents of prosecutrix in order to get himself arrested by the police. The complete silence for 19 months on the part of parents of prosecutrix in not lodging any missing report with police is also another strong piece of circumstance, which goes against prosecution and belies version of prosecutrix regarding her rape by the accused.
21. In Shyam and Another versus State of Maharashtra, 1995 Criminal Law Journal 3974, the prosecutrix had put blame on the appellants and had deposed that she was threatened right from the S.C. No. 106/09 Page 13/21 14 beginning while being kidnapped and was kept till police recovered her. It was found by the Hon'ble Supreme Court that she was not truthful as regards the manner of the socalled taking. The prosecutrix in that case was a grown up girl, though she had not touched 18 years of age but was still in the age of discretion. She was found going on the bicycle of the appellant. The Hon'ble Supreme Court noted that it was notunknown to her with whom she was going and therefore, it was expected of her then to jump down from the bicycle or put up the struggle and in any case raise an alarm to protect herself. As no such steps were taken by her, the Hon'ble Supreme Court felt that she was a willing party to go with the appellants of her own and, therefore, there was no taking out of the guardianship. The appellants were acquitted of the charge under Section 366 IPC.
22. In State of Karnataka vs. Sureshbabu, 1994 Cr.L.J. 1216 (1), it was found that the girl went with the accused voluntarily. It was held by the Hon'ble Supreme Court that the requirement of Section 366 of IPC is that taking or enticing away a minor out of the keeping of the lawful guardianship was an essential ingredient of the offence of kidnapping. It was held that in such a case, it is difficult to held that the accused had taken her away from the keeping of her lawful guardian and something more has to be shown in a case of this nature, like inducement.
23. In Mahavir vs. State, 55 (1994) DLT 428, the appellant and the prosecutrix were known to each other. The appellant took the prosecutrix to a place outside Delhi where they stayed for about fifteen days and had sexual intercourse with each other. The appellant was convicted under sections 366 and 376 of IPC. A learned Single Judge of Hon'ble High Court noticed that she had gone to Railway Station, had stood there with the appellant who also went to purchase tickets and then she had travelled with him in a compartment shared by other persons. She had then gone to a house in a tonga and yet she did not lodge any protest and S.C. No. 106/09 Page 14/21 15 made no attempt to flee despite having ample time and opportunity. The learned Single Judge noted that on the day of reckoning, she surely had crossed mark of sixteen years and since she was all along a willing party, the appellant was acquitted of both the charges against him. Thus, despite the prosecutrix being less than eighteen years of age, the appellant was acquitted not only of charge under section 376 IPC, but also of the charge under section 366 of IPC.
24. In Piara Singh vs. State of Punjab, 1998 (3) Crimes 570, Hon'ble High Court found that the prosecutrix was more than sixteen years of age at the time of this incident, though the case of prosecution was that she was fourteen years old at that time. Since Hon'ble High Court came to the conclusion that no force was used in having sexual intercourse with him, the appellant was acquitted not only of charge under section 376 but also of charge under section 366 and 366A of Indian Penal Code. In this case also, the prosecutrix was not found to be more than eighteen years of age.
25. In Bala Saheb vs. State of Maharasthra, 1994 Criminal Law General 3044, it was found that the prosecutrix accompanied the appellant/accused from her village and stayed with him for two to three days. It was held that these circumstances clearly show that offence under section 363 or 366 of IPC was not made out.
26. In Chida Ram vs. State, 1992 Criminal Law General 4073, the prosecutrix went to the PS and lodged report that she had gone with the petitioner/accused of her own accord. However, during trial, she deposed that she was forced by the accused/petitioner to got to the police station. She had also given statement before a Magistrate after lodging report with the police and in that statement she did not say that she was forced by the accused/petitioner to go to the Police Post and lodged the report. It was observed that she had ample opportunity to say before the Magistrate, before whom she was produced at the first instance, that she was forced S.C. No. 106/09 Page 15/21 16 by the accused to go to the Police Station and lodged report. The story set up by her during trial was considered to be an afterthought and was not believed. It was found that she was a consenting party in eloping from her house with the accused/petitioner. It was held that it could not also be called a case of kidnapping.
27. In Ramvir vs. State, Criminal Appeal No. 460/1999, a report was lodged by father of prosecutrix regarding missing of his daughter, aged about 13 years, and the complainant raised suspicion upon the accused. When prosecutrix appeared in the witness box, she deposed that accused had taken her on the pretext that her father had met with an accident. Later on, accused told her that he had not sustained serious injuries and she should accompany him to market for purchasing some articles. Noticing the contradictions in the statements made by the appellant, she asked him to tell what exactly the matter was. When the appellant said that she would tell truth later on, she refused to accompany him. It was alleged that she was threatened by the accused to be killed and as such she accompanied him and thereafter went from one place to another. It was observed by Hon'ble High Court that her entire conduct reflected that she had gone with accused of her own will. Had she not willingly accompanied the accused, there was ample opportunity for her to raise alarm and to inform public persons, but that was not done as such it was difficult to prove that she was forcibly taken by the accused. As such appellant was acquitted of the charge under section 363/366 IPC.
28. In view of the discussions made above, the conduct of the prosecutrix in not raising alarm or to make a complaint to anybody or to run away and to remain with the accused for a period of one and a half years reflects that it cannot be said that she was taken or induced by the accused to accompany him.
29. In this scenario, the age of prosecutrix assumes much significance. S.C. No. 106/09 Page 16/21
17 Prosecutrix has given her age as 17 years, when she came to depose in the Court on 08.04.09. Meaning thereby according to her, when she went missing she was about 14 years of age. According to PW2 Rafique, Sabina was aged about 15 years, when she was taken away by unknown persons. Except for oral testimony of prosecutrix, prosecution has not collected any other documentary evidence, which could have thrown light on the age of prosecutrix. Father of prosecutrix has deposed in his cross examination that he is giving the age of his children by approximation only. He could not tell the year in which Sabina was born. SI Kashmira Singh, who was entrusted with investigation of the case has deposed that on 08.01.09 bone age of prosecutrix was got conducted from GTB Hospital. Although prosecution has not bothered to examine doctor, who gave ossification report report. However, since this document is filed by the prosecution itself, therefore same can be read in evidence against them. A perusal of this ossification report goes to show that this report was given on 08.01.08 and the age of prosecutrix was opined to be between 1718 years.
st
30. According to Modi's Medical Jurisprudence and Toxicology (21 Edition), it is observed that the error in case of age based on ossification test may be plus or minus three years. In AIR 1970 P&H 450, Raunki Saroop v. State, it was observed that test of age on the basis of fusion is a scientific test. In that case, radiologist, after examining elbow joints, wrist joints, shoulder joints and knee joints, has opined that prosecutrix was over 15 years, but less than 16 years. It was observed that margin of error in the radiologist's examination was of two years on either side. It was also observed that if there is conflicting evidence as to age, benefit of uncertainty as to age of the girl should be given to accused. Reference may also be made to Jaya Mala V. Home Secretary, Govt. of J&K, AIR 1982 SC 1296, wherein their lordships of hon'ble Supreme Court had S.C. No. 106/09 Page 17/21 18 opined that there can be two years margin either way in radiological examination. The relevant portion of the judgement is reproduced :
"........It is notorious and one can take judicial notice that the margin of error in age ascertained by radiological examination is two years on either side......"
In Harendera Narain Singh V. State of Bihar, AIR 1991 S.C. 1842, their lordships of the Supreme Court had reiterated the well known principle of the criminal jurisprudence law that :
"......The basis rule of criminal jurisprudence is that if two views are possible on the evidence adduced in a case of circumstantial evidence, one pointing to the guilt of the accused and the other to his innocence, the Court should adopt the latter view favourable to the accused....."
31. As per report of doctor given on 08.01.08, prosecutrix was between 17 to 18 years, accused is therefore entitled to advantage of this marginal error based on ossification test. That being so, prosecutrix can be taken to be on the verge of attaining majority on the date of commission of alleged offence. That being so, all the essential ingredients of section 363 IPC are not proved, and accordingly accused is entitled to benefit of doubt in regard to this offence.
32. Even as regards offence under section 376 IPC, as discussed above, the conduct of the prosecutrix coupled with the fact that even her own parents did not make any complaint for nineteen months regarding her missing makes the version of prosecutrix regarding forcible rape upon her improbable.
33. Further more, prosecutrix was taken to hospital for medical examination. At that time, history given by the prosecutrix was kidnapping by Saleem, her brotherinlaw, one and half years back. She however alleged that at that time, she was six months pregnant. The totality of the circumstances clearly goes to show that it would unsafe to rely on the S.C. No. 106/09 Page 18/21 19 words of prosecutrix or that having been kidnapped by accused, or having committed rape upon her without her consent. 1998 (2) Apex Court Journal 629, Kuldeep Mahato vs. State of Bihar, was also a case where plea of forcible rape was taken. Hon'ble Apex Court observed that absence of injury on the person of prosecutrix, including private parts and her conduct in not running away from house and taking help of neighbours, coupled with the fact that it was not her case that she was put in physical restraint in the house and her movements were restricted negated the case of forcible intercourse and as such conviction was set aside.
34. In Balasaheb vs. State of Maharasthra, 1994 Cr.L.J. 3044, prosecutrix stayed with the accused for two days in his house with his relatives and during this period she neither tried to escape nor made any grievance to his relatives. It was observed that conduct of the victim showed her consent and accused was not guilty of rape. Similar view was taken in 1996 Cr.L.J 3449, Anath Bandhu Kundu vs. State of West Bengal and others. In view of these authoritative pronouncements, coupled with vital material available on record, which clearly reflects that as per prosecutrix version herself, she was kept at various places by the accused, where there was no dearth of public persons, she had opportunity to run away and to make complaints to others. But at no point of time, such course was adopted by her. Therefore, her own conduct belies her allegations that she was taken away by the accused on inducement or thereafter she was subjected to forcible sexual intercourse. In view of the ossification test, age of prosecutrix is to be taken as more than 16 years of age on the date of commission of alleged offence and Section 375 (6) lays down that if a person is having sexual intercourse with a female with her consent, when she is not under 16 years of age, sexual intercourse shall not tantamount to rape, the offence punishable S.C. No. 106/09 Page 19/21 20 under section 376 IPC. As such offence u/s 376 IPC is not proved.
35. Evidence coming on record falls short of fulfilling the essential ingredients of offences u/s 344 and 506 IPC.
36. According to PW2 Rafique, Sabina went missing on 08.05.06. The report in the instant case has been lodged with police only on 03.01.08. It goes without saying that FIR in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating oral evidence. Its importance can hardly be overestimated from the stand point of the accused. Delay in lodging the FIR quite often results in embellishment which is a creature of afterthought. On accoun tof delay the report not only gets benefit of advantage of spontaneity, danger creeps in of the introduction of coloured version, as a result of deliberation and consultation. As such delay in lodging the FIR need to be satisfactorily explained. Reference in this regard may be made to 1995 AIR SCW 3012, AIR 1981 SC 1390 and 1996 Cr.L.J. 3449. In the instant case, there is absolutely no explanation from the prosecution side for delay of 19 months in lodging the FIR. Although PW2 Rafique, father of the prosecutrix has deposed that when his daughter went missing, he had gone to police station in order to lodge missing report and at that time, he was asked by police officials to search her in relations and in case there is any clue then they be informed. However, there is nothing to show that after this date for complete 19 months any effort was made by him to lodge any missing report with police. Nor, he got news of his missing daughter published in newspaper nor distributed any pamphlets. This complete silence for 19 months lends assurance to the case set up by the accused that Nikah was performed between him and Sabina and father of Sabina was also a witness to this nikahanama. In order to substantiate this plea, accused has examined four witnesses in his defence. DW1 Mohd. Aman Ullah was working as Qazi and was the person, who got the marriage solemnized S.C. No. 106/09 Page 20/21 21 between Mohd. Saleem and Sabina on 04.10.06. He got nikahanama of accused and Sabina performed. He proved nikahanama as Ex.DW1/A. This nikahanama was witnessed by Shahbuddin, Najakat Ali, Mohd. Shakeel and Mohd. Rafique. He further deposed that Rafique, father of Sabina, was also present there. DW2 Shahbuddin was present at the time of nikah between accused and Sabina and he participated in that nikah as vakeel. He identified his signatures at point 'A' on the nikahanama Ex.DW1/A. This witness has deposed that he had talked with Sabina, whether nikaha was going to be solemnized with her consent or not, on which she replied that she was entering into nikahanama with the accused of her own will. Father of Sabina was also present there. Shakeel and Munna, who are brothers, also signed as witnesses on the nikahnama. DW3 Shakeel was witness to the nikahanama Ex.DW1/A and has deposed that nikah between accused and Sabina took place on 04.10.06. He identified his signatures at point 'B' on Ex.DW1/A. He also corroborated version of other two witnesses by deposing that at the time of nikah father of Sabina, namely, Rafique was also present there. He and his brother Munna signed as witnesses in the nikahanama. There was no pressure on Sabina and she gave her consent freely. Onus of proving its case beyond reasonable doubt is squarely upon the prosecution and in the instant case, prosecution has not been able to establish its case beyond reasonable doubt. On the other hand, accused has been able to cast doubt on the prosecution story from conduct of prosecutrix herself, coupled with defence taken by him that he got married with prosecutrix on 04.10.06 by virtue of nikahanama Ex.DW1/A and at the time of nikah, father of prosecutrix was also present.
37. Nutshell of the aforesaid discussion is that prosecution has not been able to prove guilt of accused to the hilt. As such accused is acquitted of the charge for offences u/s 363/344/376/506 IPC. His bail bonds are discharged. File be consigned to Record Room.
Announced in the Open Court (Sunita Gupta)
th
On this 19 day of November, 2010. District JudgeVII/NEcumASJ, Karkardooma Courts, Delhi.
S.C. No. 106/09 Page 21/21